51 P. 143 | Idaho | 1897
This is an appeal from an order of the board of commissioners of Idaho county allowing A. W. Talk-ington, clerk of the district court, $240, quarterly • salary for a deputy clerk. The appeal was taken to the district court, and the action of the board was sustained. Thereupon an appeal was taken to this court.
It was contended that said allowance for a deputy clerk was illegal: 1. Because any allowance in excess of the fees earned by the office is unauthorized by the constitution or any law of the state; 2. Because the necessity for the employment of a deputy clerk had not theretofore been determined by said board.
A. W. Talkington testified in his own behalf, and records were introduced showing the allowance of the clerk’s bill for deputy clerk hire, $240. Also the report of said clerk to the board showing his fees and commissions for the year 1895, which aggregated $2,859.75. He also testified that he had received $240 per quarter for deputy clerk hire for the year 1895, which last-mentioned sum he paid over to his deputy. The district attorney propounded the following question to the witness: “Q. •Mr. Talkington, you may state what number of deputies, if any, were required to transact the business of your office as recorder and clerk of the court during the year 1895. A. I have one deputy, but at two different times, I think, if I remember right, I employed another deputy for about a week each time. That I paid myself.” The foregoing is all of the evidence in the case, except, in response to a question by the appellant, the witness stated that he was not present during the whole year in his office. The evidence is wholly insufficient to establish the necessity for employing a deputy, and paying him out of county funds. If the clerk was sick, and unable to perform the duties of his office, or absent therefrom on business not connected with his office, the board should allow him to employ a deputy, for in such cases he may be unable to perform the duties of his office, and a deputy would be necessary. But in such cases the county is not liable for the compensation of the deputy. He must look to the clerk therefor. The clerk is not entitled to •recover from the county any compensation so paid.
In presenting this case the appellant appeared before this court in his own proper person, his attorney being absent, and made an able and unique argument, presenting, among others, the following propositions, to wit: “The taxpayers of Idaho county do not understand how, under the provisions of the constitution, the clerk of the district court can, by absenting himself from his office, and failing to perform the duties thereof,